Toomey, Jr., Timothy v. Division of Capital Asset Management and Maintenance (SPR 20140389)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 3, 2014 SPR14/389 Mr. Peter Wilson, Esq. Deputy General Counsel Department of Capital Asset Management and Maintenance One Ashburton Place Boston, MA 02108 Dear Attorney Wilson: I have received the petition of The Honorable Representative Timothy J. Toomey, Jr. appealing the July 8, 2014 response ofthe Division of Capital Asset Management and Maintenance (DCAMM) to his June 30, 2014 request for public records. See G. L. c. 66, § IO(b); see also 950 C.M.R. 32.08(2) (explaining appeals process). Specifically, Representative Toomey requested copies of all records pertaining to the sale of the Edward J. Sullivan Courthouse. On July 8, 2014, you provided Representative Toomey with a written response claiming that all the requested records are exempt due to policy positions being developed by DCAMM on this real property transaction. In your response, you state that the records may be withheld until the deliberative process has concluded. While DCAMM has failed to specify the exemption in the Public Records Law, the language in the response is identical to the language in Exemption (d) of the Public Records Law. DCAMM is reminded to properly claim an exemption in the Public Records Law when choosing to withhold a public record, and to specifically explain how and why that particular exemption applies to the records requested. On July 30, 2014, after this appeal was opened, an attorney on my staff emailed you to explain that Representative Toomey informed the Public Records Division that DCAMM has already signed a purchase and sales agreement, and therefore any policy positions being developed by DCAMM are likely concluded. This office informed you that if DCAMM has executed a purchase and sales agreement with an individual or business entity, then the procurement process appears to be concluded, and the records should be released to the public. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Peter Wilson, Esq. SPR14/389 Page Two October 3, 2014 On August 11, 2014, after a follow-up telephone call to you by the same attorney on my staff, you provided this office and Representative Toomey with a second response letter. In this letter, you state that pursuant to Section 36 of chapter 7C, of the Mass. Gen. Laws, DCAMM would withhold the proposals until the execution of a final agreement. This statute states in pertinent part that: ... [A] fter the execution of a rental or sale agreement completing such transaction, all proposals relating thereto shall be retained by the commissioner and shall be open to inspection by the public ... G. L. c. 7C, § 36. (Advertisement for submission of proposals for the acquisition by purchase or rental of real property for the use of state agencies, or for the sale or rental of real property used by state agencies). The language in the statute you cite states: "[A]fter the execution ofa rental or sale agreement completing such transaction ... " In this particular transaction, DCAMM has executed a sale agreement with a particular party, and has passed the point in which the Public Records Law would allow a record custodian to withhold the procurement and proposal process records. I find that, whereas an agreement has been signed, and further whereas any deliberative process associated with this agreement has concluded, that DCAMM can no longer withhold the responsive records. Accordingly, DCAMM is hereby ordered to provide Representative Toomey with all records responsive to his request within ten (10) days. IfDCAMM is planning to charge Representative Toomey with any fees for providing him with the responsive records, he must be provided with a written, good faith estimate. Once the estimate is paid, Representative Toomey must receive the records. Supervisor of Records cc: The Honorable Representative Timothy J. Toomey, Jr.